THE APPEAL GROUNDS
16 Grounds 3.1, 3.2, 3.3 and 3.4 deal with the Mr Masliczek's claim insofar as it relies on a diagnosis of PTSD. As already noted the Tribunal found, as a matter of fact, that the traumatic events which Mr Masliczek claimed had given rise to PTSD, either had not occurred or had not occurred in the manner described by him and that they did not give rise to a response of the required intensity.
17 In Mines v Repatriation Commission (2004) 86 ALD 62 Gray J said (at 74) that:
"If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran's operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation." (Emphasis added)
See also Fenner v Repatriation Commission [2007] FCA 406 at [63]; Repatriation Commission v Hill [2008] FCA 50 at [104]-[106].
18 Once the Tribunal had concluded that the traumatic events described by Mr Masliczek had not occurred and that he was not suffering from PTSD there was no occasion for the Tribunal to embark on the four step process which is outlined Deledio in order to determine whether a non-existent medical condition could be linked to operational service.
19 Mr Masliczek submitted that it was not open to the Tribunal, having regard to the specialist medical evidence, to find that he did not suffer from PTSD. This submission must be rejected. Only one psychiatrist gave oral evidence. That was Dr Walton. Dr Walton made a diagnosis of PTSD on the basis of the bodies' event, the shooting event and the firing event as described by Mr Masliczek. He did not consider that the taxi event or the casualty event were stressful in the necessary sense. Drs Holwill, Cole and Gelb, whose reports were before the Tribunal, also diagnosed PTSD principally on the basis of the bodies' event. As the Tribunal found, this event did not occur. The fifth doctor, Dr Kenny, did not diagnose PTSD. The evidence did not, therefore, compel a finding that Mr Masliczek suffered from PTSD.
20 During oral argument counsel for Mr Masliczek sought to argue that the Tribunal had erred in the manner in which it dealt with the general anxiety and the depressive disorders which it found, in paragraph [36], that Mr Masliczek suffered. He argued that the Tribunal's reasons suggested that these conditions had been found not to be service related because Mr Masliczek had fallen at the third of the Deledio steps: he had not experienced a category 1A or a category 1B stressor as defined in Statements of Principles Nos 101 of 2007 and 27 of 2008. It was argued that, in accordance with the Full Court's decision in Repatriation Commission v Keeley (2000) 98 FCR 108 at 123; 131-2, the Tribunal was required to consider whether earlier versions of these instruments, which were in force at the time at which the primary decision on Mr Masliczek's claim was made, might, if applied, have led to a favourable decision. These earlier versions did not contain a requirement that an applicant must have experienced defined stressors during service. The Tribunal had not considered the earlier versions.
21 The Tribunal does not explain why it was that it embarked on a consideration of the general anxiety and depressive disorders from which it found Mr Masliczek to suffer. Counsel for Mr Masliczek (who also appeared for him before the Tribunal) was unable to advise the Court as to whether the Tribunal had been urged to find that Mr Masliczek suffered from these conditions or whether the Tribunal was referred to the Statements of Principles which deal with the conditions. It may be that the Tribunal felt bound to deal with these additional conditions, because of the ruling of the Full Court in Benjamin v Repatriation Commission (2001) 70 ALD 622 at 633 that the Tribunal is required to consider issues raised by the material and evidence before it, even if an applicant does not articulate a case which is or may be supported by that evidence.
22 The difficulty which confronts Mr Masliczek is that there is no question of law or ground of appeal which raises any issue arising from the Tribunal's treatment of the psychiatric conditions identified in paragraph [36]. No application to amend was made. Had it been it was not bound to succeed because counsel for the Commission indicated that, had such issues been raised, it was likely that it would have filed a notice of contention.
23 Grounds 3.5 deals with Mr Masliczek's claim that the osteoarthrosis of the fingers from which he suffers was service related. The Tribunal held that Mr Masliczek did "not satisfy the first step" which was identified in Deledio.
24 In Deledio the Full Court explained the first step as follows (at 97):
"1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail."
25 The Tribunal noted that Mr Masliczek had attributed his painful fingers to injuries sustained while playing volleyball in Vietnam. It noted the reports of medical examinations conducted shortly after he was discharged from the Army in 1968. Those reports did not detect any injuries to his hand. The Tribunal also considered Mr Masliczek's evidence. The Tribunal determined that "the material does not point to a hypothesis connecting the condition with the circumstances of the particular service rendered by him." This conclusion was open to the Tribunal. None of the material pointed to the necessary connecting hypothesis.
26 Ground 3.7, as developed in argument, directed attention to the way in which the Tribunal had explained (or failed to explain) its reasons relating to Mr Masliczek's general anxiety and depressive disorders and his osteoarthrosis.
27 Section 43(2B) of the AAT Act requires that the written reasons of the Tribunal "shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based."
28 Although Mr Masliczek made the general submission that the Tribunal had not complied with the obligations under s 43(2B) he did not, in his written submissions, point to any particular omissions in the Tribunal's reasons. In oral argument attention was focussed on paragraphs 36 and 42 of the Tribunal's reasons.
29 Paragraph 36 is relatively short. It dismisses any link between the general anxiety and depressive disorders from which Mr Masliczek suffers and his operational service. Although briefly expressed, the Tribunal's reasons for reaching this conclusion are, in my view, adequate. The paragraph picks up, by reference, the Tribunal's earlier findings that the events on which Mr Masliczek relied either did not occur or did not occur in the manner described by him. Those events falling in the latter category had earlier been found not to have constituted traumatic events. In order for them to fall within the definitions of category 1A or category 1B stressors within the meaning of the relevant Statements of Principles it was necessary for them to be "severe traumatic events". The Tribunal does not go on to explain in detail why it was that the absence of a category 1A or category 1B stressor meant that the necessary links between the conditions and war service were not forged under the relevant Statements of Principles. The Tribunal appears to treat this as being self evident. Although some of the intermediate steps in its reasoning are not exposed, the Tribunal has provided an adequate explanation of why it is that Mr Masliczek has not been able to bring his case within either of the relevant Statements of Principles. This is because the reader is referred to the Statements and is able, by examining them, to appreciate why it is that it is necessary for the defined stressors to be present in order for the links, based on an hypothesis, to be forged.
30 Paragraph 42 of the Tribunal's reasons has already been examined above at [23] to [25]. The Tribunal has adopted some shorthand expressions such as "the first step from Deledio". Nonetheless its reasoning processes, as I have earlier summarised them, are sufficiently clear, in my opinion, to satisfy its obligations under s 43(2B) of the AAT Act.